John Doe v. Carnival Corp., et al – Part 3

Lipcon, Margulies, Alsina & Winkleman, P.A

December 06, 2012

John Doe v. Carnival Corp., et al – Part 3

Motion to Take Jurisdictional Discovery and Stay a Ruling on Defendants’ Motion to Dismiss

If you receive negligent medical care on a cruise ship, there can be significant legal hurdles to overcome before receiving compensation for your injuries. The maritime attorneys at Lipcon, Margulies, Alsina & Winkleman, P.A. are experienced at fighting to protect passenger and crewmember rights in cases involving medical negligence at sea.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-CV-23345 – UNGARO
JOHN DOE,
Plaintiff,

v.

CARNIVAL CORPORATION,
WILLIAM PRETORIUS (Ship’s Doctor),
JACQUELINE GOBEIL, (Ship’s Nurse),
BRYAN PATIU, (Ship’s Nurse),
Defendant
___________________________/

PLAINTIFF’S MOTION TO TAKE JURISDICTIONAL DISCOVERY AND TO STAY AND/OR CONTINUE A RULING ON THE MEDICAL DEFENDANTS’ MOTION TO DISMISS

COMES NOW, Plaintiff JOHN DOE, by and through his undersigned counsel, and hereby files this Motion to stay a ruling and motion to take jurisdictional discovery in response to Defendants WILLIAM PRETORIUS, JACQUELINE GOBEIL, and BRYAN PATIU’s, (hereinafter the “Medical Defendants”), Motion to Dismiss for Lack of Personal Jursidiction [D.E. 20, 21, 22] and for good cause relies on the following memorandum of law.

MEMORANDUM OF LAW

THE MEDICAL DEFENDANTS’ MOTIONS TO DISMISS FOR LACK OF PERSONAL JURISDICTION CONTAIN DETAILED FACTUAL ALLEGATIONS REGARDING THE MEDICAL DEFENDANTS CONTACTS WITH FLORIDA AND THE UNITED STATES. PLAINTIFF HAS NO MEANINGFUL WAY TO RESPOND TO THESE ALLEGATIONS WITHOUT JURISDICTIONAL DISCOVERY. THEREFORE, PLAINTIFF, RESPECTFULLY REQUESTS AN ORDER ALLOWING PLAINTIFF TO CONDUCT SUCH DISCOVERY AND THAT THE RULINGS ON DEFENDANTS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION BE STAYED AND/OR CONTINUED UNTIL THE COMPLETION OF THE LIMITED JURISDICTIONAL DISCOVERY.

I. Background.

This case arises out of permanent disabling injuries sustained by Plaintiff, JOHN DOE, aboard Defendant’s ship, the Carnival Miracle. Plaintiff alleges that on or about September 30, 2011 while the Miracle was in port in King’s Wharf, Bermuda, Plaintiff slipped and fell in his cabin shower due to an unsafe flooring surface and other defects. [D.E. 1 18 (a)-(n)]. Plaintiff broke his neck and suffered epidural hematomas along with lacerations to his head. [D.E. 1, 15].

Over a year later and after multiple surgeries, the Plaintiff is still healing. Plaintiff alleges that due to the severity of his injury and the negligence of Carnival’s Medical staff, he may never fully recover. On November 19, 2012, the Medical Defendants each filed individual motions to dismiss for lack of personal jurisdiction. In these motions, the Medical Defendants make numerous factual allegations and each of the Medical Defendants attach an affidavit to support these allegations.[1]

II.Because Plaintiffs cannot meaningfully respond to the medical Defendants jurisdictional assertions – and/or to test the veracity of Defendants’ affidavits; long-standing jurisprudence gives Plaintiff the opportunity to conduct jurisdictional discovery to ascertain the medical Defendants contacts with Florida and the United States.

It is well settled that issues of jurisdiction are proper for discovery. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n. 13 (1978). Controlling precedent establishes that a plaintiff is entitled to elicit material through discovery before a claim may be dismissed for lack of jurisdiction. See Eaton v. Dorchester Dev., Inc., 692 F. 2d 727, 731 (11th Cir. 1982). Furthermore, “Plaintiff is not required to rely exclusively upon a defendant’s affidavit for resolution of the jurisdictional issue where that defendant has failed to answer plaintiff’s interrogatories specifically directed to that issue. To hold otherwise would permit an advantage to a defendant who fails to comply with the rules of discovery.” Blanco v. Carigulf Lines, 632 F. 2d 656, 658 (5th Cir. 1980).

Under Federal Rule of Civil Procedure 26(b)(1), “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, ….” Discovery is not limited to the merits of a case, as it is available to ascertain the facts bearing on issues such as jurisdiction or venue. See Oppenheimer Fund, Inc., 437 U.S. 340, 351 n. 13 (1978). Thus, “ ‘[a] plaintiff faced with a motion to dismiss for lack of personal jurisdiction is entitled to reasonable discovery, lest the defendant defeat the jurisdiction of a federal court by withholding information on its contacts with the forum.’” Diamond Chem. Co. v. Atofina Chems., Inc., 268 F.Supp.2d 1, 15 (D.C.Cir.2003) (quoting El-Fadl v. Cent. Bank of Jordan, 75 F.3d 668, 676 (D.C.Cir.1996)).

Courts in the Southern District routinely grant the requested relief and stay litigation, pending completion of limited jurisdictional discovery. See Bridgewater v. Carnival Corporation, Rhapsody Tours, et. al., CASE NO. 10-22241-CIV-KING/Bandstra [D.E. 28] (Hon. Judge King)[2] , attached hereto as Exhibit “A.” See also Wong v. Carnival Corporation, et. al., 11-21076-CIV-HUCK/BANDSTRA (Hon. Judge Huck) (S.D. Fla. 2011) attached hereto as Exhibit “B.” See Olson v. Carnival Corporation, et. al., 11- 21061-CIV-COOKE/TURNOFF (Hon. Judge Cooke) (S.D. Fla. 2011) attached hereto as Exhibit “C.”

Indeed, Your Honor has agreed that “the district court, ‘must give the Plaintiff an opportunity for discovery and for a hearing that is appropriate to the nature of the motion to dismiss’” Theron Williams v. Signature Pools & Spas, Inc., et al, 08-22388-CIV-UNGARO (Hon. Judge Ungaro) (S.D. Fla. 2008) D.E. 17, citing Williamson v. Tucker, 645 F.2d 404, 414 (5th Cir. 1981) attached hereto as Exhibit “D”. In that case, your Honor granted limited discovery relating to existence of certain facts to sustain the Court’s subject matter jurisdiction. Id.

Plaintiff anticipates that discovery will show that the medical Defendants are engaged in business or a business venture with a company based in the United States and specifically in Florida (i.e. Carnival Corporation). There are likely contracts as well as correspondence between Carnival Corporation and the Medical Defendants that will further shed light on the relationship between the two Defendants. For instance, it is anticipated that such discovery will reveal that the Medical Defendants are employees of Carnival Corporation (a business entity located in Miami, Florida). It is further anticipated that contractual agreements exist between the Medical Defendants and Carnival which include jurisdictional clauses (choice of law/forum selection) through which the Medical Defendants purposefully availed themselves of this forum.

This and other information is necessary to affirmatively support Plaintiffs’ allegations of personal jurisdiction. As such, the Plaintiffs ask the Court to stay its ruling on the issue of personal jurisdiction for 120 days and to allow the Plaintiffs to conduct jurisdictional discovery including both written discovery and depositions of the Medical Defendants during that period.

III. Conclusion

Simply put, the Plaintiff satisfied his burden to make out a prima facie case for personal jurisdiction over the Medical Defendants by pleading the language of Florida’s Long Arm Statute § 48.193. See Biloki v. Majestic Greeting Card. Co., Inc., 33 So. 3d 815, 819 (Fla. 4th DCA 2010).

The Medical Defendants countered Plaintiff’s sufficiently pled allegations by submitting affidavits making a number of their own factual allegations. The Plaintiff should not be forced to rely on the minimal amount of information provided in those affidavits, nor should the Plaintiff be forced to accept the assertions therein as true. According to Eleventh Circuit Court of Appeals precedent, the Plaintiff has a qualified right to jurisdictional discovery.

WHEREFORE, Plaintiff requests this Honorable Court Stay a ruling on the Medical Defendants’ Motions to Dismiss for Lack of Personal Jurisdiction [D.E. 20, 21, 22], and permit the Plaintiff to take 120 days of jurisdictional discovery. At the completion of jurisdictional discovery, Plaintiff request 14 days to respond to the Medical Defendants’ Motions to Dismiss. Additionally, this Court has already postponed its conference on the parties proposed scheduling order, but should the Court grant the requested relief, jurisdictional discovery should be considered when setting the Court’s pre-trial deadlines.

LOCAL RULE 7.1A (3) CERTIFICATE OF GOOD FAITH

In compliance with Local Rule 7.1. Counsel for Plaintiff and counsel for the Medical Defendants and Carnival have conferred regarding the proposed jurisdictional discovery. The Medical Defendants and Carnival oppose the relief sought herein, but should this relief be granted, ask the Court to tailor the pre-trial deadlines accordingly.

RESPECTFULLY SUBMITTED,
LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
Suite 1776, One Biscayne Tower
Miami, Florida 33131
Telephone: (305) 373-3016
Facsimile: (305) 373-6204
By: /s/ Eric Charles Morales ­­­­­­­­­­­­­
ERIC C. MORALES
FLORIDA BAR # 91875

 


[1] The Medical Defendants’ affidavits all make the same blanket factual assertions, namely that they are foreign citizens that have never been citizens or residents of Florida, that they do not operate, conduct, engage in, carry on, or transact business in the State of Florida, and that they at not point maintained a residence in Florida or availed themselves of the Florida forum. [D.E. 20-1, 21-1, 22-1]. Plaintiff has a right to test the veracity and completeness of these allegations through limited discovery.

[2] Plaintiff anticipates that the Medical Defendants and/or Carnival will point to the decision of the Hon. Judge King in Yepez v. Regent Seven Seas Cruises, 10-23920-CIV, 2011 WL 3439943 (S.D. Fla. Aug. 5, 2011). Therein, Judge King held that jurisdictional discovery should not be allowed in cases where the Plaintiff has been remiss in his duty to collect necessary facts supporting personal jurisdiction prior to filing suit. With all due respect to Judge King, however, many of the facts necessary to support personal jurisdiction are not available to the Plaintiff without the benefit of limited discovery. Carnival’s Medical Defendants will not willingly turn over property records, tax records, banking records, contracts or any other records reflecting contacts with this forum unless compelled to do so by the formal process of discovery. Without this information, Plaintiff can do nothing but plead good faith allegations based on available information and prior experience. This is exactly what the Plaintiff did herein.